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By Marcia M. Ziegler*

As lawyers, we have great power—the things we say in courtrooms and write in publications across the country impact the lives of our clients and society as a whole. But as lawyers, we traditionally have not been active in original research—and that should change. We can and we should integrate our talents into original work with PhDs, as our skills are valuable, our knowledge of liability is helpful, and our writing is clear and detailed. These abilities are as yet nearly untapped in original research, but they can and they should be utilized in new and significant ways.

By Kirsten K. Davis*

Generative artificial intelligence likely represents a paradigm shift in legal communication teaching, learning, and practice. What we know (so far) about generative AI suggests that law school legal writing courses will need to teach generative AI skills to be used as part of a hybrid human-generative AI legal writing process. Accordingly, legal writing faculty will need to understand how generative AI works, its implications for legal writing practices, and how to teach legal writers the knowledge and skills needed to use generative AI ethically and effectively in their work.

As a community of scholars, legal writing faculty should lead the inquiry into the connections between generative AI and legal writing products, processes, and practices. This is an exciting time; there are many unanswered questions to explore about the relationships between human writers and machine writing tools.

Unlike other essays in the Unending Conversation collection, this essay does not join a conversation. Instead, it is a conversation starter; it is meant to “open the parlor door” and encourage legal writing scholars to research at the intersection of generative AI and legal writing. As legal communication experts, legal writing faculty are well-situated to be frequent and expert speakers in this conversation.

This essay explains why generative AI represents the beginning of a paradigm shift in legal writing that requires scholarly exploration and presents some ideas for the “big issues” that will need investigation.

In his article, A Curmudgeon’s View of the Multi-Generational Teaching of Legal Writing, Professor Jan Levine, bemoans the current state of Legal Writing as an academic discipline. He decries the short memory of its members and organizations and a perceived lack of depth of research in its scholarship. He alleges a tendency of the community to avoid criticism of legal writing colleagues with respect to both pedagogy and scholarship. Further, Professor Levine complains that those writing faculty who achieve tenure no longer have a primary identity as legal writing faculty, something he finds problematic. His overall argument is that generational differences are the root cause of many of these problems and that the younger generations’ ways of approaching matters are necessarily inferior. However, this argument ignores that lower-ranking faculty status and institutional barriers, not generation, are at the heart of these concerns.

Professor Levine and I teach at the same school; he directs the legal writing program and supervised me as the director until just this year, when I stepped away from teaching legal writing due to administrative duties. The fact that I feel comfortable enough to write this response to his well-received article is proof that status matters. An untenured professor, even one with 405(c) status, could not do this with confidence and security. I am conscious that Professor Levine is a major reason legal writing faculty (including me) have tenure and status at Duquesne Kline Law and elsewhere. He deserves many accolades for his previous work, but Curmudgeon’s View misses the mark.

Different generations (and different individuals) bring a variety of strengths to the legal writing field, to both teaching and scholarship, and that diversity is a strength, not a weakness. To the extent Professor Levine’s observations critical of the legal writing field are accurate, it is a function of the lack of status and job security available for the majority of legal writing faculty rather than “naivete,” “incomplete efforts,” or “lack of research.” In this essay I explore several concepts—high turnover, burnout, significant gender disparity, and uneven mentoring of faculty—that contribute to the issues Professor Levine mentions.

Elizabeth Berenguer, Lucy A. Jewel and Teri A. McMurtry-Chubbs’ Gut Renovations made an extraordinary contribution to the conversation by showing how traditional legal rhetoric, especially syllogistic reasoning, perpetuates bias and injustice, and proposed looking to non-Western rhetorical forms as an alternative. Essential to the argument is the idea that legal rules and the legal syllogism have great power to determine the outcomes of cases.

We agree that law is biased and that IRAC and rule-based reasoning often furthers that bias. But we argue that doesn’t have to be the case. IRAC and legal rules can be far less constraining and outcome determinative than they first appear. And if IRAC and rules are malleable—not fixed—they can be repurposed as instruments of change.

Sometimes a structural foundation is so faulty that the house must be torn down to the studs. But other times a house can be transformed through no-demo renos by using the structure that exists to create something new and beautiful. This Essay argues that in addition to Gut Renovations’ call to look to other forms of rhetoric to de-bias our perspectives and our law, we also must envision ways to achieve change through the structures of traditional rhetoric. We need to reform traditional legal rhetoric not just from the outside in, but also from the inside out.

This essay continues the controversial conversation about what forms of scholarship count as legal scholarship. At a time when tenure itself is under scrutiny, the question of what scholarship counts toward status improvement or job security in legal academia is as important as ever. In our experience, resistance to legal writing scholarship persists at many law schools. At these schools, the result is that some legal writing faculty must publish in a second area of interest, imposing on them a double burden they might not otherwise assume and depriving them of the opportunity to be students and scholars of the subject they teach. We argue that legal writing scholarship—scholarship that is often inter- or cross-disciplinary in nature, communication-centered, connected to law, and related to the creation of legal texts—meets well-established criteria for legal scholarship and should count towards promotion and all kinds of tenure. As we also demonstrate, legal writing scholarship is both descriptive and normative—the bellwethers of legal scholarship. It is descriptive in the sense that it defines and explores the theory and practice of effective legal communication and normative in the sense that it explores what legal communication can and should be in the form of oral and written advocacy. To understand the legal advocate’s role in achieving just legal outcomes, we need scholarship that is unabashedly descriptive, normative, and interdisciplinary; that restores legal communication to its rhetorical roots, and that aims both for more fair and effective legal solutions and a better understanding of how to achieve them.